Commentary - Art. 72. Part III : Captivity #Section V : Relations of prisoners of war with the exterior

ARTICLE 72. -- RELIEF SHIPMENTS: I. GENERAL PRINCIPLES

[p.351] GENERAL REMARKS

Provision was made in Article 16 of the 1907 Hague Regulations and Article 37 of the 1929 Convention for the sending of parcels and relief shipments to prisoners of war. During the Second World War, relief action in behalf of prisoners of war developed considerably (1). The 1929 Convention permitted parcels to be addressed to individual prisoners of war, but serious difficulties arose when they were distributed in the camps: some prisoners considered that they were being unfairly treated; censorship was sometimes slow, and distribution was delayed when prisoners were assigned to labour detachments or transferred from one camp to another; moreover, the civilian population was subject to strict rationing and there was sometimes discontent that prisoners should enjoy considerable material advantages through receiving parcels. For these reasons, and despite the provisions of Article 37 of the 1929 Convention , the Detaining Powers were obliged to restrict the number of individual parcels each man was allowed to receive or which [p.352] their families were allowed to send. The Powers of origin sometimes adopted similar measures. A great many prisoners of war were consequently never able to receive parcels from home. The Conference of Government Experts nevertheless proposed that under the revised Convention prisoners of war should still be permitted to receive individual parcels, and that Detaining Powers should not, on their own initiative, prohibit or restrict the issue of individual parcels; if it became necessary to institute such restrictions, they should be the subject of special agreements between the parties concerned (2). The text of the present Article was finally drafted in this sense at the 1949 Diplomatic Conference (3). The provisions of Article 72 and the subsequent Articles do not exhaust the subject, however. In the first place, they relate only to material relief, even if, as in the case of books, it is the instrument of moral relief. Direct moral assistance for prisoners of war is dealt with in Articles 34 -38 (religious, intellectual and physical activities) and to a certain extent in Article 125 (relief societies). Furthermore, the sending of money (which also falls within the category of material relief) is regulated by the section devoted to the financial resources of prisoners of war (Article 63, paragraph 1 ). Secondly, Articles 72 and 73 deal primarily with the question of relief from the point of view of those who receive it, that is to say the prisoners of war; the rôle of the donors and of the organizations authorized to distribute parcels directly to prisoners of war is dealt with in Article 125 (relief societies). The main purpose of Articles 72 and 73 is to reaffirm, with such additions and details as experience has proved necessary, the right of each prisoner of war to receive relief supplies. It is a fundamental right, like the right to correspond -- one of the inalienable rights established by the Prisoners of War Convention.

Relief shipments may be either "individual parcels or collective shipments" (4).

1. ' Individual relief '

Individual relief consists of parcels sent by a donor to a prisoner of war, the latter being designated by name. This form of relief is undoubtedly the most attractive one for the donor in the first place, who knows which person receives the parcels, and in the second place for the prisoner of war, who thus maintains a direct relationship with his friends and family, in the same way as he is able to do through correspondence. Leaving aside the question of the material value of relief, there is no doubt that individual packages or parcels from home have a more beneficial effect on morale than parcels received from an anonymous donor. The individual package system is, however, only suitable for a limited relief scheme, and it proved totally inadequate during the Second World War. Many prisoners of war were unable to receive individual relief, for various reasons: their families were short of funds, there were no communications between their country of origin and the Detaining Power, parcels were wrongly or inadequately addressed, others were improperly packed and their contents consequently damaged during transport, etc. Relief action undertaken on this basis was therefore not completely successful. The reasons mentioned above are, of course, not sufficient to justify prohibiting any direct relationship between a prisoner of war and his family or friends in regard to relief supplies, and the authors of the Convention rightly retained the principle expressed in Article 37 of the 1929 Convention ; but the need to make provision for collective relief shipments had become fully apparent.

2. ' Collective relief '

Collective relief is sent to prisoners of war either in standard anonymous parcels, or in the form of bulk shipments. Provision is [p.354] made for the receipt and distribution of collective relief in Article 73 and in the Regulations concerning collective relief (Annex III). During the Second World War, collective relief supplies forwarded by the International Committee of the Red Cross were addressed to a prisoner of a given nationality who enjoyed the confidence of his fellow-prisoners (generally the prisoners' representative); he then stored the supplies and distributed them according to need or the instructions received. In most cases, shipments could be sent only in in the name of a national Red Cross Society recognized by the adverse Party, but they might consist of gifts from a great variety of sources. Collective shipments were the most effective means of helping prisoners of war and avoided the drawbacks of the individual relief system mentioned above. In all European countries, the food situation became so serious in the course of the Second World War that the additional supplies received in relief shipments were in many cases indispensable. This system afforded a higher degree of safety than individual parcels, and losses were usually very small. The prisoners, representatives in the camps were able to build up stocks so as to make the best use of the supplies received. Collective relief soon proved preferable to the individual relief system and it made a great contribution towards the feeding of prisoners of war (5).

3. ' Transport '

Individual or collective relief supplies may be sent "by post or by any other means". Forwarding by post is only suitable for individual packages, weighing not more than 5 kgs. As an exceptional measure, the maximum weight permitted is 10 kgs. in the case of parcels whose contents cannot be split up or which are addressed to a camp or to prisoners' representatives for distribution to prisoners of war (6). Provided that postal channels remain open, they may and should be used. This method of forwarding is only suitable for a limited relief scheme based on individual parcels, however, since collective shipments would have to be packed in a great number of small parcels, and many disadvantages would be entailed. [p.355] Collective relief will therefore be forwarded in most cases by the means of transport generally used for conveying bulky goods (rail, road, ship, etc.). Should military operations prevent the conveyance of shipments by this means, special means of transport may be organized, in accordance with Article 75 .

4. ' Contents '

The 1929 Convention appeared to restrict the contents of parcels to certain articles, such as books, foodstuffs or clothing. Experience showed the need to permit a greater variety of articles to be sent to prisoners of war, and Article 72 therefore mentions medical supplies and makes a general reference to articles of a religious, educational or recreational character. The latter phrase was logically considered as including also individual or collective shipments of books, and the reference to books which had been included in the 1929 text (Article 39 ), as well as in the Stockholm draft, was therefore omitted. Article 72 goes even further. It is clear from the term "in particular" which precedes the list of permitted articles that the list is not exhaustive, and that in principle parcels may contain other articles which may be required. For reasons of security or because of checking difficulties, however, the Detaining Power might possibly not approve of the inclusion of certain articles not on that list; it therefore seems preferable that in practice the Power on which prisoners of war depend should come to an agreement on the matter with the Detaining Power (7).

A. ' Foodstuffs '. -- Food may be sent either in individual parcels, whether or not addressed to a particular prisoner of war, or in bulk shipments; in principle, the donors are free to select the goods they wish to send. It should be borne in mind, however, that certain foodstuffs, such as coffee, encourage black marketing.

B. ' Clothing '. -- Clothing may be sent either in individual parcels, whether or not addressed to a particular prisoner of war -- and containing for instance a complete outfit for a prisoner of war -- or in the form of boxes or bales for general issue.

[p.356] C. ' Medical supplies '. -- From the beginning of the Second World War, parcels of medical supplies addressed by name were always sent to the chief medical officer of a camp or hospital or, if there was none, to a head nurse, welfare officer or a representative of the local Red Cross. The question is now settled by paragraph 4 of the present Article, which states that, as a rule, medical supplies are to be sent in collective parcels. This solution was adopted in the interest of the prisoners of war, who should not have access to medical supplies except under medical supervision.

D. ' Articles of a religious, educational or recreational character '. -- The intention is to enable prisoners of war to continue their studies or to engage in artistic pursuits. By way of indication, express reference is made to devotional articles, scientific equipment, examination papers, musical instruments, and sports outfits. This form of relief is particularly important for prisoners detained for a long time; it can help them to maintain their professional skills. The donor should obtain detailed information concerning the real needs of the prisoners to whom the goods are to be sent, for requirements in intellectual and occupational matters are much more individual than those in other fields (8).

PARAGRAPH 2. -- OBLIGATIONS OF THE DETAINING POWER

This paragraph expressly states that relief shipments addressed to prisoners of war in no way free the Detaining Power from its obligations. The obligations in question are the following: Pursuant to Article 15 , the Detaining Power must provide free of charge for the maintenance of prisoners of war and for the medical attention required by their state of health. This general obligation is supplemented by specific provisions concerning food (Article 26 ), clothing (Article 27 ), the supply of ordinary articles in daily use (Article 28, canteens ), medical attention (Article 30 ), devotional articles, which the belligerents generally supplied during the Second World War together with the premises required by Article 34, paragraph 2 [p.357], and lastly intellectual, educational and recreational pursuits, sports and games, which are the subject of Article 38 , and which the Detaining Power must encourage and facilitate, in particular by providing prisoners of war with the necessary equipment. In short, the supplies and facilities which the Detaining Power is obliged to provide must be sufficient to enable prisoners of war to live a healthy and decent life. Relief supplies are merely complementary.

PARAGRAPH 3. -- RESTRICTIONS

In principle, the Detaining Power should encourage the sending of relief supplies to prisoners of war in its hands, not, as has just been pointed out, because such shipments relieve the Detaining Power of any of its obligations in regard to the maintenance of prisoners of war, but for material as well as psychological reasons, with a view to reciprocal action. If the material conditions in which prisoners of war live are improved, order and discipline will be strengthened in the camps. Furthermore, if the Detaining Power grants certain facilities to the prisoners of war in its hands, members of its own armed forces who have fallen into enemy hands will benefit by similar facilities. Despite these considerations, during the Second World War certain Detaining Powers, while not actually opposing relief shipments addressed to prisoners of war, nevertheless showed a tendency to restrict such shipments, either for reasons of public policy, or because of purely material considerations. Reference has already been made to the difficulties which may arise in regard to the local population when relief shipments are issued to prisoners of war, particularly when the civilian population is undergoing great hardship. If prisoners of war furthermore take advantage of the situation to indulge in black market activities, the Detaining Power is undoubtedly justified in putting a stop to such practices by imposing appropriate restrictions on relief shipments. With regard to purely material problems, difficulties are mostly likely to arise when large numbers of parcels are addressed to individual prisoners of war, causing serious delays in distribution, and perishable goods may consequently be wasted. The main problem is that of adequate transport and suitable warehousing facilities. During the Second World War, Detaining Powers dealt with this problem in several ways. Under one such system, the only individual parcels accepted were those bearing special labels which were issued by the Detaining Power to prisoners of war and then sent by the latter [p.358] to donors (9). In practice this system led to unjust discrimination in the sending of relief parcels and it was eventually abandoned. In the light of the experience gained, the authors of the Convention considered that it should include regulations concerning relief shipments. The Detaining Power may Hot take the initiative in limiting relief shipments; restrictions may be proposed only by the Protecting Power or by a charitable organization. In practice, the Detaining Power would probably approach one of those bodies in order to point out that, in its opinion, it was necessary to limit relief shipments. Moreover, the Convention authorizes the Protecting Power or the charitable organizations concerned to make definite proposals, that is to say to determine the nature and scope of the restrictions. What would be the rôle of the Protecting Power and the relief organizations respectively? The text itself points out two essential differences. In the first place, the organization which sends or forwards relief may propose restrictions only in respect of its own shipments; it would obviously be illogical or even dangerous to enable it to limit relief shipments which were not its concern. On the other hand, it is natural that the Protecting Power, which is normally kept informed, should also be able to propose restrictions even if it is not actually concerned with the forwarding of shipments.

PARAGRAPH 4. -- SENDING OF RELIEF

This paragraph refers only to the conditions for the sending of relief supplies. The special agreements referred to must therefore neither provide for nor result in restrictions on the distribution. The present paragraph makes this clear: any restriction on the issue of relief supplies is governed solely by paragraph 3 of the present Article. In principle, the Detaining Power is entitled to check all individual parcels or collective consignments before they are delivered to prisoners of war. Checking will take all the longer if the packages vary greatly in weight, size, composition and packing. Thus the donors themselves during the Second World War came round to the idea of making up standard parcels. In the light of that experience, it was therefore felt that it would be preferable to settle the conditions governing the sending of relief by special agreements between the Powers concerned, mainly in order to speed up checking. [p.359] The present paragraph goes even further by including specific regulations on two points. Firstly, parcels of clothing and foodstuffs must not contain books. Secondly, medical supplies must, as a rule, be sent in collective parcels; the phrase "as a rule" was deliberately inserted in order not to prevent the inclusion in a family parcel of a medicament specially required by a prisoner which might not be included in collective medical relief.

* (1) [(1) p.351] In this connection, see especially ' Report of the International Committee of the Red Cross on its activities during the Second World War, ' Vol. III, p. 201 ff.; see also with special regard to the Far East, ibid., Vol. I, pp. 455-463;

(2) [(1) p.352] See ' Report on the Work of the Conference of Government Experts, ' pp. 185-186;

(3) [(2) p.352] It consists of Articles 61 and 63 of the draft submitted to the Stockholm Conference (Article 39 of the 1929 Convention, relating especially to books), in which it was decided to include all the principles pertaining to relief shipments, whether collective or individual. See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, pp. 368, 286-287; Vol. III, pp. 76-77. Annexes Nos. 135 and 136;

(4) [(1) p.353] See ' Report of the International Committee of the Red Cross on its activities during the Second World War, ' Vol. III, pp. 201-280 and 281-287. See also, with special reference to the Far East, ibid., Vol. I, pp. 455-463;

(5) [(1) p.354] For more detailed information concerning collective relief action during the Second World War, see ' Report of the International Committee of the Red Cross on its activities during the Second World War, ' Vol. III, pp. 204 ff.;

(7) [(1) p.355] Detaining Powers often publish a list of articles which it is forbidden to send to prisoners of war. Moreover, account has been taken of considerations of control and security in regard to certain articles which are specifically authorized; reference will be made to this below in connection with the sending of books and medical supplies;

(8) [(1) p.356] See ' Report of the International Committee of the Red Cross on its activities during the Second World War, ' Vol. I, p. 276 ff., for details of the work done in this field by the International Committee of the Red Cross and other humanitarian organizations during the Second World War;

(9) [(1) p.358] See ' Report of the International Committee of the Red Cross on its activities during She Second World War, ' Vol. III, pp. 281-283;